Third District Court of Appeal at 2001 SW 117th Ave., in Miami. Photo: J. Albert Diaz/ALM

The Third District Court of Appeal has ruled in favor of a major phone company in a dispute concerning an arbitration clause and a putative class action lawsuit.

The appellate court issued an opinion Wednesday reversing and remanding a January 2017 order by Miami-Dade Circuit Judge Jorge Cueto, who denied MetroPCS’ motion for arbitration against disgruntled customer Jorge Porter. The appeals court found that Porter had agreed to resolve any prospective conflicts with his wireless service provider through arbitration when he consented to the terms and conditions of service.

The appellate court found three different notice methods germane to Porter’s interaction with MetroPCS: the written documents at sale, prelitigation text messages, and text messages sent after the start of the lawsuit. In contrast to the trial court, the Third DCA held that payment reminder text messages that MetroPCS sent Porter both before and after he filed suit against the company sufficiently put him on notice about the contract’s arbitration provision.


Read the ruling: 


The appellate court singled out text messages from MetroPCS containing a hyperlink to the terms and conditions of service as an easily accessible and direct means of making Porter aware of the arbitration provision in the contract.

“Porter understood that the phrase ‘Terms & Conditions’ was a link through which he could access information of MetroPCS’ terms and conditions on his phone. However, Porter never accessed the information because he believed he ‘had no reason to go there,’ ” the court wrote. “ Porter simply chose not to click on the hyperlink.”

The Third DCA’s ruling allows for MetroPCS’ motion for arbitration against Porter to proceed.

The litigation between the two parties began in May 2012 when Porter filed a putative class action complaint against his longtime phone service provider. The lawsuit alleged the company had violated Florida’s Deceptive and Unfair Trade Practices Act by charging him as well as other MetroPCS users sales tax on the full price of cellphones that had been purchased using a rebate.

MetroPCS subsequently countered Porter’s putative class action by submitting a motion to compel arbitration of his claim in June 2012.

Porter’s lawyer, Coral Gables attorney Gonzalo Dorta, did not respond to requests for comment by press time. The attorneys who argued on behalf of MetroPCS — San Francisco-based counsel Michael J. Stortz and Carlton Fields Jorden Burt lawyers Aaron S. Weiss and Steven M. Blickensderfer — also did not reply by deadline.

A representative for T-Mobile, which merged with MetroPCS in 2013, declined to comment citing company policy of not speaking on pending litigation.

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